In the Interest of W.C.

288 S.W.3d 787, 2009 Mo. App. LEXIS 850
CourtMissouri Court of Appeals
DecidedJune 16, 2009
DocketNo. ED 91354
StatusPublished
Cited by14 cases

This text of 288 S.W.3d 787 (In the Interest of W.C.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of W.C., 288 S.W.3d 787, 2009 Mo. App. LEXIS 850 (Mo. Ct. App. 2009).

Opinion

OPINION

GLENN A. NORTON, Judge.

J.M. (“Mother”) appeals the judgment of the juvenile court terminating her parental rights to W.C., M.M., W.M. and G.M.1 We reverse and remand as to Mother.

J.C. (“Father”) appeals the judgment terminating his parental rights to W.C. and M.M.2 We find that the juvenile court did not err in terminating his parental rights. Because an extended opinion as to Father would have no precedential value, the judgment terminating his parental rights is affirmed pursuant to Rule 84.16(b).

I. BACKGROUND

Mother is the natural mother of W.C., a daughter born on December 28, 1999, and sons M.M., born on October 21, 1996, W.M., born on February 24, 2001, and G.M., born on November 13, 2002. Garry M. is Mother’s husband and the natural father of W.M. and G.M. At the time the Children’s Division became involved with the family, all four children were living with Mother and Garry.3

A. Conditions Leading to Juvenile Court Jurisdiction

On October 13, 2004, the Children’s Division received a child abuse and neglect report alleging unsanitary living conditions at Mother’s household. When the Division arrived to inspect the home, they found raw sewage in the yard and old food and animal feces inside the home. There were no bed linens. The children were dirty and unkempt and had untreated lice infestations. The children were removed from the home but returned the next day after the Division assisted Mother and Garry in obtaining appropriate housing at a hotel.

The Division returned for a home visit on November 17 and 18. Again, the home was found to be in a deplorable condition with animal feces on the floor and food smeared on the wall. There were no utilities and the children were dirty. M.M. had flea bites on his arms and W.M. had a large oozing burn on his arm. The Division removed the children and assisted Mother and Garry in cleaning up the home. The children were returned on November 23.

The Division made a final visit to the home on January 3, 2005, but Mother denied the Division workers access to the home. The Sheriffs Department determined it was not safe to pursue arguing with Mother and Garry that evening. Instead, the Sheriffs Department arrived the following day and obtained custody of the children. The children remained in foster care for the remaining duration of the case.

B. Petition to Terminate Parental Rights

In December 2007, the juvenile officer filed a petition to terminate the parental rights of Mother, Father, and Garry. In addition to alleging that the children were abandoned by Garry, the juvenile officer alleged that: (1) the children were abused and neglected under section 211.447.5(2);4 [790]*790(2) the children have been under the jurisdiction of the juvenile court for more than one year and conditions of a potentially harmful nature continue to exist under section 211.447.5(3); and (3) all three parents are unfit to be a party to the parent-child relationship under section 211.447.5(6).

C. Testimony at Hearing on Juvenile Officer’s Petition to Terminate Parental Rights

At the hearing on the juvenile officer’s petition to terminate parental rights, the parties presented evidence from several witnesses about various topics relating to the juvenile officer’s allegations. Each subject will be discussed separately below.

1. Allegations of Drug Use

The Chief Deputy Juvenile Officer, Kim Johnson, testified that she began working on the case in October 2004, when the children were first removed from Mother’s home. Johnson explained that “throughout this whole case, drugs have been an issue with both parents.” In particular, she testified that a surface test for meth-amphetamines was performed on the children on January 5, 2005, the day after the Division placed them in foster homes. Pamela Herzog, a children’s services worker assigned to the case from October 2004 until January 2005, discussed the results of the test. She stated that W.M. was found to have a trace amount of methamphetamine on his temple and a strong amount on his shoes. In addition, a trace amount of methamphetamine was discovered on M.M.’s and G.M.’s shoes. During her testimony, Johnson acknowledged that Mother told her the shoes were recently purchased at a yard sale.

On January 5, 2005, Herzog obtained a search warrant to search Mother’s home. She agreed that she had not actually seen any of the items listed in the affidavit used to obtain the warrant, but stated that the agency directed her to sign the affidavit.5 No illegal items were seized when the search warrant was executed.

The following April, the case manager who succeeded Herzog, Patty Cluck, took items from Mother’s home to further investigate alleged use of drugs. According to Cluck, the Division was primarily concerned with drug use by Garry. The items, taken with Mother’s permission, included a floor mat from Garry’s car and a toy purse from the children’s toy box. Both tested positive for methamphetamine. Cluck did not discuss the positive test results with Mother.

On April 13, 2005, Mother entered into a social service plan agreement with the Division which required her to submit to random drug testing.6 The record indicated that Mother tested positive for methamphetamine once, on April 26, 2005. According to Mother, she believed she may have tested positive because she was taking over-the-counter cold medication at the time. Mother missed two tests in May and June 2005. She explained that she could not afford the tests and was having transportation problems. At the time, Mother was unemployed. The Division treated both missed tests as positive drug [791]*791screens. Mother tested negative for the presence of drugs for all of the remaining seven drug tests. The drug and alcohol assessment required by the service plan agreement concluded that Mother did not need treatment for drugs or alcohol.

Two years later, in April 2007, after Tabitha Randall became the case manager, the Division received a call from someone identifying himself as Mother’s brother.7 Randall testified that Mother’s brother told her he had seen Mother and Garry using methamphetamines in their home the previous night. When the Division arrived to investigate, Mother took a drug test and consented to a search of her home. Mother tested negative for methamphetamine. In the search, the Division obtained a drug screen kit. Mother told Randall that the kit was purchased to test her brother’s girlfriend who had a history of drug use. Investigators also found clear plastic tubing in the loveseat in the living room. Mother stated she did not know how the tubing got there, but that her brother’s girlfriend slept on the loveseat.

The Division later determined that Mother’s brother was at work during the time he alleged he saw Mother and Garry using drugs at Mother’s home. Randall acknowledged that they therefore could not determine whether Mother’s brother’s allegations were true. No charges were filed. Moreover, in the same May 2007 court report describing Mother’s brother’s allegations, the Division recommended increased visitation between the children and Mother, with the goal of reunifying Mother with the children at the end of the school year.

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Bluebook (online)
288 S.W.3d 787, 2009 Mo. App. LEXIS 850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-wc-moctapp-2009.